Rethinking International Law After Gaza Symposium: Containing Liberation – The Transitional Justice Industrial Complex in Palestine

Rethinking International Law After Gaza Symposium: Containing Liberation – The Transitional Justice Industrial Complex in Palestine

[Dr Brendan Ciarán Browne is an Assistant Professor Conflict Resolution and Fellow of Trinity College Dublin]

Introduction

At this time of ongoing ‘scholasticide’ against our colleagues in the Gaza Strip, resulting in the destruction of all 12 universities, the murder of thousands of university staff and students, and with restrictions placed on access to campuses across the West Bank, the need to speak up and out for Palestine, with moral clarity and steadfast conviction, has never been so pressing. Yet, for many in the academy, silence(ing) has been the order of the day, demonstrating once again the liberal proclivity towards academic selectivity—all lives are equal until a Palestinian enters the room. 

For the best part of a decade, my scholarly work and pedagogy has focused on issues related to post-conflict ‘justice’. I have been particularly interested in the praxis of transitional justice (TJ), critiquing its suitability in addressing the legacy of colonial violence, either in spaces where such violence lingers under the surface, as is the case in the north of Ireland, or remains catastrophically and asymmetrically omnipresent, as in Israel-Palestine. I admit, until now, I have been reluctant to fully disassociate from what I believe(d) is TJ’s potential, being convinced that, in certain contexts, it remains a fruitful and worthwhile endeavour. I have seen and experienced first-hand how a limited application of TJ has been helpful in facilitating difficult and painful conversations around reconciliation in the context of the north of Ireland, particularly when such conversations are grassroots, and community driven. 

However, in the case of Palestine, where there has been a steady, albeit incremental increase in scholarly and practitioner interest in TJ, I have remained sceptical. In previous articles, and a recent book, I argued that if it truly wishes to address justice issues that are at the heart of the ‘conflict’ being waged on Palestine, TJ work must speak without obfuscation. Its aim must be to spotlight zionism’s ongoing western sponsored settler colonial aim, a process that has reached its brutal genocidal zenith, rather than call for limited ‘justice’ interventions that are devoid of context. In retaining some hope, and avoiding throwing the baby out with the bathwater, I previously called for a radicalisation of the sub-discipline lest it be relegated to liberal interventionist irrelevance. Although shirking a description on what amounts to a ‘radicalised’ TJ, I argued that those wedded to the sub-discipline’s potential must consider a TJ language and praxis that fundamentally departs from the decades long peacebuilding approaches that were only ever interested in approaches of containment and management of the Palestinian people. 

As I pen this essay Gaza continues to be subjected to the first live-streamed genocide in history. Ethnic cleansing and extreme settler violence ratchets up across the West Bank and Lebanon is once again being indiscriminately bombed. In considering how any academic can teach international law and TJ with a straight face, I am transported back to my classroom at the Al Quds University, occupied Jerusalem, where I spent several semesters in 2015 and 2020. I recall, with a mix of nostalgia and acute embarrassment, one particular interaction with a student, as I set about introducing our weekly discussion on ‘truth recovery as justice’. As I began to teach, I noticed she was visibly distressed, and so I stopped to enquire if she was ok:

‘Professor, what is the point in any of this? They killed my cousin Hasan last night. The noise you hear outside is the students gathering to remember him. There’s no such thing as justice in Palestine’.

Ever since, I have methodically considered this basic but primordial question: ‘What is the point?’ Or, to put this another way, who is it that really benefits from the ‘new science’ of TJ and in whose interests does it really serve? 

Palestinian scholar Nadim Khoury has argued that before adopting TJ we must ask: ‘whose justice, what transition?’ What happens when the language and praxis of TJ is pressed into service in sites of ongoing settler-colonial conflict, as is the case in Palestine? As an academic sub-discipline of the law, TJ has become safely and carefully subsumed within the bosom of the Israeli academy, inoculated through international scholastic engagement and the involvement of ‘useful cheerleaders’, discussed and debated in classroom and conference spaces that remain off-limits to most Palestinians. It is thus prudent to query what form of ‘justice’ is really being proposed. When TJ interventions in the region are being vociferously promoted and funded by European and American partners, those whose governments are the primary sponsors of Israels’ ongoing genocide of the Palestinian people, their claim of suitability in providing some form of meaningful redress must be consistently and vociferously called out.  

Deafening Silence

For decades, Palestine and the Palestinians have had their legitimate demands for liberation, self-determination, and justice curated and subjected to academic scrutiny, a point that Edward Said (1984) highlighted in his famous treatise ‘permission to narrate,’ the theme that sets the parameters of this symposium. Richard Falk, former UN Special Rapporteur, noted that: ‘Part of the Palestinian tragedy… is that others have again and again presumed to talk on behalf of the Palestinian people… these alien voices have consistently overridden Palestinian voices on the basis of geopolitical calculations and Orientalist thinking’. With its ‘fundamentally liberal… origins’ (p. 265) TJ provides the perfect linguistic apparatus of colonial control and containment. 

Although there has been a burgeoning interest amongst scholars, TJ in Israel-Palestine has been operating for some time, hidden in plain sight. A wide range of actors, including grassroots organisations and international NGOs have proposed specific interventions related to, inter alia, ‘truth recovery’, the promotion of people-to-people ‘reconciliation’ programmes, and other forms of unhelpful, surface level interventions, those that squash asymmetries, individualise perpetrators and culpability, and avoid having hard conversations around ‘land back’ or decolonisation. Conversations around reconciliation are quickly reduced to calls for collective amnesia, the right of return becomes dismissed as wistful sentiment, and reparations are presented as implausible and impractical. The collective demand is indigenous concession rather than settler accountability. 

If we consider various grassroots attempts at ‘truth recovery’, such efforts can simply facilitate the platforming of settler guilt, allowing for ‘tears after the fact’ rather than enforcing accountability and implementing redress. In borrowing from Abushama, TJ interventions that seek to uncover the ‘truth’ about the past amidst ongoing settler colonial erasure in historic Palestine ‘…are reflective of the wider settler colonial power relations that determine who remembers, how they remember, and according to whose archives’. After all, as Madlingozi (2010) reminds us: ‘Speaking for and about victims perpetuates their disempowerment and marginality’. A similar critique can be levied against selective engagement in ‘international criminal justice’, the scapegoating of a few bad apples, rather than holding the entire rotten racist applecart of a colonial state to account.

TJ and the Israeli Academy

As a constituent element in the maintenance of the occupation of Palestine, the Israeli academy provides the intellectual scaffolding for the architecture of the apartheid regime and has long been an enabler of anti-Palestinian racism. During the genocide, we have seen this play out on a number of occasions, from banning Palestinian student protests, to arresting Palestinian academic staff. It is into this environment that TJ has found fertile terrain and taken root. The growth of TJ programmes in the Israeli academy is evident through the emergence of educational programs, at both undergraduate and postgraduate level, the establishment of centres of ‘excellence’, the forging of international partnerships between Israeli institutions and universities in the West, particularly through law schools, and by hosting international conferences that bring ‘experts’ to Israel to discuss justice for Palestine (in the absence of Palestinians). The vast majority of these activities are funnelled through Israel’s most prominent universities—Tel Aviv University and the Hebrew University in Jerusalem—spaces that are inaccessible to most Palestinians, including all who live in the West Bank, Gaza Strip, and wider diaspora, those who are refused the requisite ‘permission’ from the Israeli authorities to enter Jerusalem. New academic courses and colloquia on TJ have been created, including a full Master’s degree on ‘Human Rights and Transitional Justice’, and several undergraduate courses, benefitting from endorsements from, and participation of, founding voices in the field

A sizable chunk of the work is funded by The Minerva Stiftung, a German organisation whose stated aim is establishing German Israeli cooperation, with financial support from the German Federal Ministry for Education and Research (BMBF). Funding provided helped to establish the Minerva Centre for Human Rights, a joint Tel Aviv/Hebrew University in Jerusalem, designed to ‘promote interest in human rights issues in the academic community and at large’, within which is embedded a dedicated TJ unit. A separate Minerva postdoctoral fellowship in transitional justice has been created, allowing the successful candidate to be based at the Hebrew University in Jerusalem, whilst also offering the recipient the chance to enjoy a short research stay at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg—an Institute operated by the Max Planck Society, which silenced  an Australian scholar based at the Max Planck Institute of Social Anthropology in Halle who spoke up against the Israeli government’s ongoing genocide. 

When we consider that academic work in every society drives policy decisions and helps embed a dominant narrative, the result is the fostering of an orthodoxy around TJ that replicates, consolidates, and delineates specific values, views, and positions around what amounts to ‘transition’ and ‘justice’ in and for Palestine and Palestinians. Being rooted in and led by institutions that benefit from their position as emanations of colonial power means that TJ is more than simply an academic exercise. Moreover, when you consider the almost ‘complete hegemonic coalescence between the liberal Western view of things and the Zionist—Israeli view’ to borrow from Edward Said, and when set alongside the utterly destructive outworking of the liberal peacebuilding framework that has been enforced on the Palestinian people, the wider academic support for TJ in Israel is far from surprising. Embedding TJ in spaces where the coloniser has a monopoly over the language, discourse, and framing of issues that have direct implications for the colonised—and by availing of the support of powerful experts who have not heeded the PACBI call to boycott—speaks volumes about the sub-disciplines guiding, liberal values. 

Conclusion

When the inevitable, yet still painfully distant, ceasefire arrives those silent ‘experts’ who found speaking up and out for Palestine such a moral quandary, will no doubt find their voice, providing intellectual ‘hot takes’ on how to engage in ‘post-conflict’ reconstruction, how to platform difficult conversations around truth recovery, how to engage in ‘institutional reform’, whilst simultaneously avoiding an awkward engagement with the settler colonial elephant in the room. Speaking out after the fact will be the order of the day for many and their interventions will mirror other bastard versions of liberal peacebuilding, those that have consistently been weaponized and imposed upon a Palestinian population for whom the very concept of ‘peace’ has long been elusive. As Rabea Eghbariah observed: ‘Scholars tend to sharpen their pens after the smell of death has dissipated and moral clarity is no longer urgent’. The ‘transitional justice entrepreneur’ (p. 211) stands poised, waiting in the wings to apply for that research grant, to launch that ‘new’ international symposium, to ask ‘why can’t they all just get along?’ The Israeli academy, with their useful European and American allies, those who claim to be convinced that the purported last bastion of Israeli ‘liberalism’ remains—despite a genocide to the contrary—will provide the requisite academic infrastructure.

It is the words of Palestinian intellectual Ghassan Kanafani that best sum up the sheer folly of this entire enterprise: ‘They steal your bread then give you a crumb of it… then they demand you thank them for their generosity… O their audacity’. Scholars truly committed to a justice oriented, decolonial future in and for Palestine cannot seek to ‘radicalise’ a discipline that has revealed itself to be a supreme liberal tool routinely pressed into service for settler colonial conquest. We must avoid engaging in fragmented and tokenistic approaches to colonial peacebuilding, those that seek to isolate, contain, and ultimately silence legitimate and necessary demands for a justice oriented Palestinian liberation. ‘When the contours of Palestine are being redrawn in blood, and when unconscionable images of starving, injured, and dead children, women, and men have become our daily breakfast’, how can any serious legal scholar give oxygen to a liberal TJ industrial complex that is less focused on a decolonial and liberated Palestine (justice) and more interested in smoothing over a difficult and tricky imagined future (transition). 

It was Malcolm X who once opined: ‘If you stick a knife in my back nine inches and pull it out six inches, there’s no progress. If you pull it all the way out that’s not progress. Progress is healing the wound that the blow made’. TJ interventions in Palestine, if they are to have any semblance of relevance, must consider directly the wounds inflicted by zionism and its relentless attempt to erase the Palestinian people. Without this, TJ in and on Palestine is little more than pseudo-intellectual gaslighting or a sick joke. 

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